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Cases - Trai
Cases - Trai
Held – the court held that regulations made by Trai are legislative and not executive
and thus wide and pervasive an hence cannot be made ineffective or modified by the
parliament and no other body ( unless arbitrary or violative or consti or the parent
act)
99. Before parting with this aspect of the matter, we may notice Sections 33 and 37. A
reading of the plain language of Section 33 makes it clear that TRAI can, by general or
special order, delegate to any member or officer of TRAI or any other person such of its
powers and functions under the TRAI Act except the power to settle disputes under
Chapter IV or make regulations under Section 36. This means that the power to make
regulations under Section 36 is non-delegable. The reason for excluding Section 36 from
the purview of Section 33 is simple. The power under Section 36 is legislative as opposed
to administrative. By virtue of Section 37, the regulations made under the TRAI Act are
placed on a par with the rules which can be framed by the Central Government under
Section 35 and being in the nature of subordinate legislations, the rules and regulations
have to be laid before both the Houses of Parliament which can annul or modify the
same. Thus, the regulations framed by TRAI can be made ineffective or modified by
Parliament and by no other body.
100. In view of the above discussion and the propositions laid down in the judgments
referred to in the preceding paragraphs, we hold that the power vested in TRAI under
Section 36(1) to make regulations is wide and pervasive. The exercise of this power is
only subject to the provisions of the TRAI Act and the Rules framed under Section 35
thereof. There is no other limitation on the exercise of power by TRAI under Section
36(1). It is not controlled or limited by Section 36(2) or Sections 11, 12 and 13.
In view of the above discussion and the propositions laid down in the judgments
referred to in the preceding paragraphs, we hold that the power vested in TRAI under
Section 36(1) to make regulations is wide and pervasive. The exercise of this power is
only subject to the provisions of the TRAI Act and the rules framed under Section 35
thereof. There is no other limitation on the exercise of power by TRAI under Section
36(1). It is not controlled or limited by Section 36(2) or Sections 11, 12 and 13.”
[paras 89, 98 – 100]
81. We are of the opinion that as the TRAI is constituted as an expert regulatory body
which specifically governs the telecom sector, the aforesaid aspects of the disputes are to be
decided by the TRAI in the first instance. These are jurisdictional aspects. Unless the Civil
Appeals arising out of SLP (C) No. 35574 of 2017 & Ors. Page 104 of 122 TRAI finds fault with
the IDOs on the aforesaid aspects, the matter cannot be taken further even if we proceed on the
assumption that the CCI has the jurisdiction to deal with the complaints/information filed before
it. It needs to be reiterated that RJIL has approached the DoT in relation to its alleged grievance
of augmentation of POIs which in turn had informed RJIL vide letter dated September 06, 2016
that the matter related to inter-connectivity between service providers is within the purview of
TRAI. RJIL thereafter approached TRAI; TRAI intervened and issued show-cause notice dated
September 27, 2016; and post issuance of show-cause notice and directions, TRAI issued
recommendations dated October 21, 2016 on the issue of inter-connection and provisioning of
POIs to RJIL. The sectoral authorities are, therefore, seized of the matter. TRAI, being a
specialised sectoral regulator and also armed with sufficient power to ensure fair, non-
discriminatory and competitive market in the telecom sector, is better suited to decide the
aforesaid issues. After all, RJIL’s grievance is that interconnectivity is not provided by the IDOs
in terms of the licenses granted to them. TRAI Act and Regulations framed thereunder make
detailed provisions dealing with intense obligations of the service providers for providing POIS.
These provisions also deal Civil Appeals arising out of SLP (C) No. 35574 of 2017 & Ors. Page
105 of 122 as to when, how and in what manner POIs are to be provisioned. They also stipulate
the charges to be realised for POIs that are to be provided to another service provider. Even the
consequences for breach of such obligations are mentioned.